National Citizenship and the Case for Non-Territorial Election Districts

University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Book Reviews Faculty Scholarship 2006 Wandering Lonely as a Cloud: National Citizenship and the Case for Non-Territorial Election Districts (review of Andrew Rehfeld, The Concept of Constituency: Political Representation, Democratic Legitimacy, and Institutional Design) James A. Gardner University at Buffalo School of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.buffalo.edu/book_reviews Part of the Election Law Commons Recommended Citation James A. Gardner, Wandering Lonely as a Cloud: National Citizenship and the Case for Non-Territorial Election Districts (review of Andrew Rehfeld, The Concept of Constituency: Political Representation, Democratic Legitimacy, and Institutional Design), 5 Elec. L.J. 210 (2006). Available at: https://digitalcommons.law.buffalo.edu/book_reviews/18 This Book Review is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Book Reviews by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. 6122_09_p210-222 3/31/06 10:56 AM Page 210 ELECTION LAW JOURNAL Volume 5, Number 2, 2006 © Mary Ann Liebert, Inc. Book Review Wandering Lonely as a Cloud: National Citizenship and the Case for Non-Territorial Election Districts JAMES A. GARDNER Andrew Rehfeld. The Concept of Constituency: tisan. It is blamed for producing a host of un- Political Representation, Democratic Legitimacy, competitive and even entirely uncontested and Institutional Design. New York: Cambridge elections throughout the nation. Widespread University Press, 2005, 244 pp., $75.00 (hard- partisan redistricting is said to have created cover). a Congress so bitterly divided by ideology and partisanship as to be incapable of acting in the public good, if indeed it is capable of I acting at all. Redistricting practices are exco- riated from the left as a tool for suppressing NEARLY 1812, Massachusetts Governor El- minority political power, from the right for Ibridge Gerry, a staunch Republican, signed being subjected to manipulation on racial into law apportionment legislation designed to grounds, and from the center for elevating ensure Republican control over the state senate racial symbolism over the substance of mi- in the next election. To achieve this goal, the nority political claims. Criticizing the shape legislation divided Essex County into two sen- of electoral districts has become something of atorial election districts, and reallocated the a political sport, in which participants com- town of Chelsea, located just over the border pete to supply vividly pejorative adjectives, in neighboring Suffolk County, from its former such as “bizarre,” “contorted,” “grotesque,” Suffolk County senatorial district to one of the “irregular,” and “serpentine,” and descrip- new Essex County districts. The manifest pur- tive metaphors, such as “bacon strip,” pose of this legislation was to carve out of Es- “dumbbell,” “jigsaw,” and “pseudopod.” sex County, which in 1811 had comprised a sin- Critics have proposed numerous reforms to gle, solidly Federalist senatorial district, a new improve the redistricting process and control district that would elect several Republican its susceptibility to partisan manipulation. state senators. Within weeks the legislation be- Some would impose substantive requirements came the object of intense public scorn and out- to constrain the discretion of redistricters: dis- rage, giving rise to a new political term of de- tricts must meet mathematical standards of rision: “gerrymandering.”1 compactness, for example, or must circum- Two hundred years later, the process by scribe objectively identifiable communities of which election district lines are drawn still is heaped in public scorn. It is widely con- demned as excessively and irremediably par- 1 Elmer C. Griffith, The Rise and Development of the Ger- rymander (Chicago: Scott, Foresman and Company, James A. Gardner is Joseph W. Belluck and Laura L. 1907), 19–20, 64–74; George Athan Billias, Elbridge Gerry: Aswad Professor of Civil Justice at the State University of Founding Father and Republican Statesman (New York: New York, University at Buffalo Law School. McGraw-Hill Book Co., 1976), 316–18. 210 6122_09_p210-222 3/31/06 10:56 AM Page 211 NATIONAL CITIZENSHIP AND NON-TERRITORIAL ELECTION DISTRICTS 211 interest, or must be politically competitive as ernance—counties in most of the nation, towns measured by major party registration and vot- in New England. What was shocking about the ing patterns. Others would rely on procedural eponymous 1812 gerrymander was not so reforms, such as specifying mandatory line- much that politicians manipulated the struc- drawing algorithms, or vesting the power to re- ture of representation for partisan purposes— district in nonpartisan, independent commis- such practices were already known in England sions. and colonial America5—but that it conspicu- Meaningful reform, however, has been elu- ously flouted a core tenet of the age holding sive. State legislators, not surprisingly, have that county boundaries demarcated genuine been slow to adopt reforms that would deprive differences among populations, and that these them of the power to protect themselves and differences were meaningful for purposes of their parties from effective electoral competi- legislative representation. Yet even this seem- tion. The public, although apparently dis- ingly firm baseline was never as solid as it ap- gusted by redistricting practices, seems con- peared, for it simply referred any uncertainty fused about what, if anything to do; reforms about the proper boundaries of election dis- have been imposed on the legislature by ini- tricts to the prior question of the proper bound- tiative in some states, such as Arizona, but have aries of counties and towns, a question for been defeated in others, such as California and which no universally accepted standards ex- Ohio. Meanwhile, the U.S. Supreme Court has isted even then. As a result, nineteenth-century twice attempted to articulate constitutional state legislatures sometimes manipulated rep- limits to partisan gerrymandering, and failed resentation more subtly by adhering faithfully spectacularly on both occasions.2 The Court re- to local government lines, but simply creating cently accepted a case from Texas that it may new counties and towns, which under existing use as a vehicle for taking yet another pass at constitutional rules were then entitled to inde- this seemingly intractable problem.3 pendent representation.6 It is often argued in academic circles that the What little consensus as existed about the main reason why the seemingly simple task of proper dimensions of election districts began drawing election district lines has proven so to erode during the first half of the twentieth troublesome is that the baseline is uncertain century in response to growing population dis- and contested—we lack, in other words, any parities between urban and rural districts that universally accepted standards by which to de- became increasingly difficult to ignore. The cide what the proper boundaries of a territor- coup de grâce was delivered by the U.S. ial election district ought to be. Should the line Supreme Court in 1964 when it decided in Wes- be here or there? Should the district stop at this berry v. Sanders7 and Reynolds v. Sims8 that pop- river or mountain range, or span it? Should it ulation disparities among election districts vi- include this neighborhood or that? This block? olated the federal Constitution. Those decisions This apartment complex or shopping mall? ushered in the present era, in which population These are not questions that admit of obvious equality has become the dominant constitu- answers. As Justice Anthony Kennedy wrote in tional criterion by which the validity of districts a recent case, “there are yet no agreed upon is judged; in which district lines must be dis- substantive principles of fairness in districting,” and consequently “we have no basis on which to define clear, manageable, and politically neutral standards for measuring the par- 2 Davis v. Bandemer, 478 U.S. 109 (1986); Vieth v. Jube- ticular burden a given [districting plan] im- lirer, 541 U.S. 267 (2004). 3 4 League of United Latin American Citizens v. Perry, 74 poses on representational rights.” U.S.L.W. 3351 (U.S. Dec. 12, 2005) (noting probable juris- This was not always the case. Throughout diction in four consolidated appeals). much of American history, the proper bound- 4 Vieth, 541 U.S. at 307–08. 5 aries of state and federal election districts were Griffith, supra note 1, at 23–29. 6 See, e.g., Griffith, supra note 1, at 73, 102. generally understood to coincide with the 7 376 U.S. 1 (1964). boundaries of the primary units of local gov- 8 377 U.S. 533 (1964). 6122_09_p210-222 3/31/06 10:56 AM Page 212 212 GARDNER carded and remade every decade; and in which constituencies that are homogeneous and vol- no line or boundary whatsoever can lay claim untary, qualities that Rehfeld views as unde- to any greater intrinsic validity or permanence sirable in an electoral constituency. than any other. When it comes to dividing up In The Concept of Constituency, Rehfeld offers a territory into election districts, we are, truly, at third way. Representatives in Congress, he ar- sea. gues, should be elected neither from single- In his new book The Concept of Constituency, member, territorial election districts nor from Andrew Rehfeld, an Assistant Professor of Po- multimember PR districts. Instead, he maintains, litical Science at Washington University, offers the ideal structure of congressional representa- an explanation for why, in the forty years since tion requires representatives to be elected from Wesberry, no consensus has emerged concern- randomized, permanent, involuntary, non-terri- ing the standards for evaluating the propriety torial, nationwide, single-member election dis- and constitutional validity of congressional tricts.

Load more